December 3, 2018

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
February 18-20, 2019
The Westin San Diego
San Diego, CA
June 17-20, 2019
CWAG Annual Meeting
The Ritz Bacara
Santa Barbara, CA
Supreme Court Remands Weyerhaeuser Co. v. United States Fish and Wildlife Service

The Supreme Court remanded Weyerhaeuser Co. v. United States Fish and Wildlife Service, et al. to the U.S. Court of Appeals for the 5th Circuit. The case involved a challenge to the U.S. Fish and Wildlife Service designating privately owned lands as critical habitat for the endangered dusky gopher frog, which today is found only in Southern Mississippi. Writing for a unanimous court, Justice Roberts found the 5th Circuit must consider in the first instance the meaning of "habitat" under the Endangered Species Act (ESA) to determine whether the U.S. Fish and Wildlife Service’ habitat designation is overly broad. The lower court must determine whether the Fish and Wildlife Service erred in finding a disputed parcel (Unit 1) to be habitat at all, given the landowners' contention the land is not currently suitable habitat for the frog. The Supreme Court also held that the Fish and Wildlife Service decision not to exclude unit one from the designation of critical habitat is reviewable. Section 4(b)(2) of the ESA “requires the Secretary to ‘tak[e] into consideration the economic impact . . . of specifying any particular area as critical habitat’ and authorizes him to ‘exclude any area from critical habitat if he determines that the bene­fits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.’” The Court ordered the 5th Circuit to “consider whether the Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision not to exclude Unit 1 arbitrary, capri­cious, or an abuse of discretion.”
LCRG Addresses Invasive Species on Columbia River Basin - CSG West

CSG West's Legislative Council on River Governance (LCRG) submitted a letter to Bonneville Power Administration (BPA) urging continued funding that supports regional coordination to prevent the introduction of aquatic invasive species in the Columbia River system. The letter stems from lawmakers' concerns about BPA's across-the-board budget reductions and the threat of quagga and zebra mussels to hydroelectric dams and fish passage facilities. A letter was also submitted to the Northwest Power and Conservation Council urging this policy-making body to expand its strategy to prevent aquatic invasive species as part of its Columbia River Basin Fish and Wildlife Program.
The letters were submitted by LCRG Chair, Washington Representative Bruce Chandler, on behalf of the LCRG membership. To view the letters, click below:
The Three Most Chilling Conclusions From the Climate Report
Thirteen federal agencies agree: Climate change has already wreaked havoc on the United States, and the worst is likely yet to come
The Atlantic , November 26, 2018

The U.S. government published a major and ominous climate report. Despite being released on a holiday, when it seemed the smallest number of people would be paying attention, the latest installment of the National Climate Assessment is, as told to my colleague Robinson Meyer, full of “information that every human needs.”

The report traces the effects climate change has already wrought upon every region of the United States, from nationwide heat waves to dwindling snowpacks in the West. In blunt and disturbing terms, it also envisions the devastation yet to come.

The document’s dire claims, backed by 13 federal agencies, come frequently into conflict with the aims of the administration that released it. Where the Trump administration has sought to loosen restrictions on car emissions, the report warns that vehicles are contributing to unhealthy ozone levels that affect nearly a third of Americans. Whereas the president has ensured that the United States will no longer meet the goals outlined in the Paris Agreement on climate change, the report says that ignoring Paris could accelerate coral bleaching in Hawaii by more than a decade.
Latest Nuclear Waste Plan: Leave It
The Idaho Statesman, December 2, 2018

After spending billions of dollars over several decades to remove radioactive waste leaking from a plant where nuclear bombs were made, the Energy Department has come up with a new plan: leave it in the ground.

The shuttered Hanford Nuclear Reservation, which produced plutonium for U.S. atomic weapons from World War II through the Cold War, is the nation’s largest nuclear cleanup site with about 56 million gallons of waste stored in leak-prone underground tanks in south-central Washington state.

The Energy Department has proposed to effectively reclassify the sludge left in 16 nearly empty underground tanks from “high-level” to “low-level” radioactive waste. The re-classification would allow the department to fill the tanks with grout, cover them with an unspecified “surface barrier,” and leave them in place.

But environmental groups and others say the plan amounts to a semantic sleight of hand that will leave as much as 70,000 gallons of remaining nuclear sludge — some of which could be radioactive for millions of years — in the ground.

“This is the most toxic stuff in the world,” said Geoffrey Fettus, a senior attorney with the Natural Resources Defense Council. “You could have a lethal dose in a matter of hours or minutes.”

A similar proposal to reclassify waste at the site was attempted by the George W. Bush administration — prompting a ferocious and protracted legal and legislative battle. The Trump administration revived the idea formally in June and took public comments for five months. A final determination could come as soon as next spring.
Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities
November 7, 2018

Former Attorney General Sessions issued a memorandum to heads of civil litigation components of the Department of Justice on November 7th entitled “Principles and Procedures for Civil Consent Decrees and Settlement Agreements with State and Local Governmental Entities.” The memorandum “requires that the Department provide state and local governmental entities an adequate opportunity to respond to any allegations of legal violations; requires special caution before using a consent decree to resolve disputes with state or local governmental entities; provides guidance on the limited circumstances in which such a consent decree may be appropriate; limits the terms for consent decrees and settlement agreements with state and local governmental entities, including terms requiring the use of monitors; and amends the process for the approval of these mechanisms in cases in which they are permissible.”
WOTUS Rule: Puget Soundkeepers Alliance v. EPA
November 26, 2018

On November 26th, the United States District Court for the Western District of Washington invalidated EPA’s rule delaying the effective date of the 2015 WOTUS Rule for two years.  Puget Soundkeepers Alliance v. EPA, 2018 WL 6169196 (W.D. Wash. 2018).  The court held EPA was arbitrary and capricious in limiting comments to “the issue of “whether it is desirable and appropriate to add an applicability date to the [WOTUS Rule].” The court found the “Agencies’ reinstatement of the pre-2015 definition of ‘the waters of the United States,’ even temporarily, constituted rule making subject to the APA’s notice and comment requirements.”  Although the court issued a nationwide injunction, it will not affect the 28 states where the 2015 WOTUS rule is currently stayed, according to the EPA website.
Solicitor General Invited to Express Views on WOTUS

The Supreme Court invited the Solicitor General to file briefs expressing the views of the United States in County of Maui V. Hawaii Wildlife Fund, et al.( 18-260) and Kinder Morgan Energy Partners v.. Upstate Forever, et al.(18-268). The Solicitor General's briefs in these cases must be filed by Friday, January 4, 2019. Both cases raise the question of whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.
Native Ecosystems Council v. Marten
“This case concerns challenges to two decisions of the United States Forest Service ("Forest Service"): (1) the Forest Service Chiefs designation of approximately five million acres in Montana ("Designation") pursuant to the 2014 Farm Bill Amendment to the Healthy Forests Restoration Act ("HFRA") and (2) approval of the Moose Creek Vegetation ("Project") via categorical exclusion.” The United States District Court for Montana Missoula Division granted summary to defendants holding that the Moose Creek Project is "categorically excluded" from NEPA review by 16 U.S.C. § 6591b(a)(l).
Justices Debate Indian Control of Land in Oklahoma
The Idaho Statesman , November 28, 2018

The Supreme Court grappled with whether an Indian tribe retains control over a vast swath of eastern Oklahoma in a case involving a Native American who was sentenced to death for murder.

Some justices said they fear a ruling for the Muscogee (Creek) Nation could have big consequences for criminal cases, but also tax and other regulatory issues on more than 3 million acres of Creek Nation territory, including most of Tulsa, Oklahoma’s second largest city.

The issue is before the high court in the case of Patrick Murphy, who was convicted of killing a fellow tribe member in 1999. A federal appeals court threw out his conviction because it found the state lacked authority to prosecute Murphy. The appeals court ruled that the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.

A decision in Carpenter v. Murphy, 17-1107, is expected by late spring.
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to or The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.